Submitted on Briefs: August 1, 2018
District Court of the Second Judicial District, In and For
the County of Silver Bow, Cause No. DN 15-80 Honorable Brad
Newman, Presiding Judge
Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana.
Joyce, Silver Bow County Attorney, Mark Vucurovich, Special
Deputy County Attorney, Butte, Montana.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
T.F. III (Father) appeals the Silver Bow County District
Court's January 5, 2018, Order terminating his parental
rights to his child P.F. (born in 2014) (Child). Father also
appealed the termination of his parental rights to
Child's half-siblings, K.F. and T.F. IV, under DA 18-0055
and DA 18-0056, respectively. All three cases share factual
information and procedural histories. K.F. and T.F. IV are
not Indian children, whereas there is potential P.F. is an
Indian child, possibly raising Indian Child Welfare Act
(ICWA) issues. As such, Father's appeals regarding K.F.
and T.F. IV were consolidated in a single opinion and this
separate opinion is being issued to address the separate ICWA
issues implicated herein. We reverse and remand for further
action consistent with this opinion.
On September 11, 2015, the Child and Family Services Division
of the Montana Department of Public Health and Human Services
(Department) filed a Petition for Emergency Protective
Services (EPS), Adjudication of Child as Youth in Need of
Care (YINC), and Temporary Legal Custody (TLC) regarding the
Child due to concerns of domestic violence, drug use, Father
absconding from conditional release, and inappropriate people
in the home with the Child. Child was placed with her
maternal grandparents (Grandparents).
Child Protection Specialist (CPS) Crowson's Affidavit
dated September 4, 2015, states:
[t]o the best of my knowledge and believe[sic] the child
maybe[sic] an Indian Child Subject to the Indian Child
Welfare Act. The Child's Indian Tribe may be Little
Shell-Chippewa Cree. Efforts made to determine the
child's tribe includes[sic] the Department sending out
letters to the Little Shell and Chippewa Cree Tribes.
Maternal grandmother is enrolled [in] both tribes.
(Emphasis added.) There is no certificate of service in the
record for this document or the Petition it was affiliated
with, thus there is no way to know who received copies. On
September 11, 2015, the Department filed a Notice of
Involuntary Child Custody Proceeding In State Court that
reiterated the same potential tribal memberships, but then
served it only on Child's guardian ad litem―not on
counsel for Father or Mother, and not on either tribe. After
this "Notice," there is no further mention in the
record of serving case documents on either tribe or making
further attempts at confirming Child's ICWA status.
On June 23, 2016, CPS Kindt filed an affidavit in support of
EPS, Adjudication as YINC, and TLC re: Birthmother that
stated she believed Child was "not an Indian Child
subject to the Indian Child Welfare Act," but provided
no evidence in support of this belief. On October 10, 2017,
CPS Ballenger filed an affidavit in support of termination of
parental rights which reiterated CPS Kindt's statement,
again without a basis for the statement. Child's ICWA
status is not mentioned in the October 21, 2015, hearing
transcript or the January 4, 2017, hearing transcript. At the
December 6, 2017, termination hearing CPS Ballenger stated,
without documentation or testimony from any tribe, that Child
is not an Indian child.
Father stipulated throughout the matter to ongoing TLC and
two consecutive treatment plans. On October 10, 2017, the
Department petitioned to terminate Father's parental
rights (TPR) to Child based on § 41-3-609(1)(f), MCA,
citing his failure to complete a treatment plan and asserting
he was unlikely to change within a reasonable time. On